Paul Milling’s defence

Helensburgh District Court, 14th May 2002

My defence is in two parts – firstly that no breach of the peace occurred and secondly, if you do not agree with that, that my act was legal as being ’necessary’ to prevent the commission of a greater crime.

Taking the first part, you have heard from witnesses that the Oil Depot Gate is 20 to 30 metres from the main road round a bend. At the gate you have heard that there were at most 20 protesters standing quietly with my wife and I chained together at the gate.

Their Lordships, in their decision in Smith vs. Donnelly established two tests to establish if a breach of the peace has occurred. The first is that “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” has occurred or that, “if there is no evidence of actual harm, the conduct must be “flagrant” if it is to justify a conviction. They go on to say that “”Flagrant” is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances.”

I would suggest that neither of these tests is met in this case. The gate itself is invisible to what I would call ’ordinary’ members of the community. That other part of the community – the workers at the base itself – are used to delays in entering the base as a result of this type of action, at most they might be irritated by the delay and unmoved at the sight of two middle-aged people lying in the road. There Lordships were clear, in Smith vs. Donnelly, when they said that in order to convict “something substantially greater than irritation is involved”. Similarly, there was nothing in a group of at most 20 people standing at a gate and two people lying in front of it that that could be said to be “flagrant” – alarming or seriously disturbing in the particular circumstances – what might well be alarming in a quiet residential street cannot be regarded as alarming at a nuclear submarine base with a long history of peaceful protest outside it.

Coming to my second point, the grounds of necessity – the commission of a minor crime to prevent the commission of a greater crime – require that a greater crime is being committed. This I would hope to demonstrate to you.

Your honour is, I am sure, very familiar with the arguments surrounding Paragraph 105 E of the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons of 8th July 1996 and the use that Her Majesty’s Government has made of this clause to continue possessing nuclear weapons. I would like to suggest two arguments that you are unlikely to have heard on the illegality of possessing nuclear weapons.

Firstly – I think it is now well accepted that nuclear weapons are weapons of mass destruction and cannot meet the Hague convention requirement that a weapon’s use in self-defence must be proportional. By way of example you have seen my diagram of the effect of a 100 kiloton nuclear weapon similar to those within a Trident submarine, were it dropped on this courthouse. Within just over 2 seconds the whole of Helenburgh is destroyed. This is not a weapon capable of proportional use. That It is not possible to use a nuclear weapon legally is well accepted, except – apparently – for the single circumstance mentioned in Paragraph 105 E. This states that “the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake” – and it is this – apparent – loophole that the government is using to continue possessing nuclear weapons. However, this clause was voted in 7 votes for to 7 votes against on the deciding vote of the President of the Court. It is, therefore, reasonable to conclude that the opinion of the President is the deciding opinion – and in his individual declaration on Paragraph 105E he says “I cannot sufficiently emphasise the fact that the Court’s inability to go beyond this statement of the situation can in no manner be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons.” In other words, the court might see a circumstance in which the threat or use of nuclear weapons might happen, but that threat or use would be illegal.

This brings me to my second point – has the threat of the use of nuclear weapons occurred? Her Majesty’s Government would say that nuclear weapons are a deterrent and no threat has been made, but I would draw the courts attention to two recent statements by the Secretary of State for Defence, Mr Geoffrey Hoon, which I have placed before you. The underlining and emphases are mine.

You will see that that on both 20th March and 29th April Mr Hoon has made it clear the Government will use nuclear weapons against Iraq, using such phrases as “nuclear weapons will have to be used”, “we would be prepared to use them”, “Iraq … might be prepared to contemplate taking on a nuclear power such as the United Kingdom and accept the consequences”, “such states would be willing to sacrifice their own people”, “they can be absolutely confident that in the right conditions we would be willing to use our nuclear weapons”.

I do not believe you could ask for a clearer threat than that. As we have just heard, that threat is illegal, therefore if we have committed a crime, which I believe Smith vs. Donnelly says we have not, that crime was justified on the grounds of necessity and I would ask you to find us not guilty.

Chronological Development Of A Nuclear Weapon Burst


100 Kiloton Shallow Underground Burst After 2 Seconds




When a nuclear explosion occurs at a shallow depth underground, the fireball breaks through the surface of the earth within a fraction of a second of the instant of detonation. The intensely hot gases at high pressure are released and they carry up with them into the air large quantities of soil, rock, and debris in the form of a hollow column. For a burst at a shallow depth, the column tends to assume the shape of an inverted cone which fans out as it rises, to produce a radial throw-out. A highly radioactive cloud, which contains large quantities of earth, is formed above the throw-out as the hot vapors cool and condense. Because of the mass displacement of material from the earth’s surface, a crater is formed. For a 100-kiloton weapon exploding 50 feet beneath the surface of dry soil, the crater would be about 120 feet deep and 720 feet across. The weight of the material removed would be over a million tons.

From The Effects of Nuclear Weapons, Samuel Glasstone, ed., USAEC, Washington, DC, April 1962; Revised Edition reprinted February 1964.

Hansard – Parliamentary Debate of 29th April 2002



13. Mr. George Osborne (Tatton): If he will make a statement on preparations for future military action in Iraq. [50952] The Secretary of State for Defence (Mr. Geoffrey Hoon): We have made plain our concerns about Iraq’s continued development of weapons of mass destruction and the potential threat the Iraqi regime poses to the international community. Allowing those programmes to continue unchecked is simply not an option. However no decision on military action has been taken and no such action is imminent. Any decision that we make will be taken carefully, cautiously and in accordance with international law. Mr. Osborne: Both the Prime Minister and the American President have made it clear that military action against Iraq is at least an option, even if no decisions have been taken. Can the Secretary of State reassure the House-or at least, the Opposition-that intensive 29 Apr 2002 : Column 665 preparations are under way for the contingency of military action, including a possible ground campaign; otherwise, the threat against Saddam Hussein is hollow? Mr. Hoon: Intensive efforts are being made to require Iraq to comply not only with a series of resolutions of the United Nations Security Council, but with international law. Specifically, weapons inspectors, who have not been in Iraq since 1998, should be allowed to return. It is vitally important that we see for ourselves whether or not Saddam Hussein is, as we suspect, continuing in his efforts to develop weapons of mass destruction. That is the diplomatic and international political route that we continue to take. Mr. Malcolm Savidge (Aberdeen, North): Do the Secretary of State’s recent comments concerning the possible use of nuclear weapons against Iraq signal a change of Government policy, whereby Britain is reneging on assurances given to non-nuclear weapons states under the nuclear non-proliferation treaty? Indeed, are the Government abandoning the policy of successive British Governments of regarding nuclear weapons as a deterrent of last resort? Mr. Hoon: There has been no change in the British Government’s policy-the use of nuclear weapons is still a deterrent of last resort. However, for that to be a deterrent, a British Government must be able to express their view that, ultimately and in conditions of extreme self-defence, nuclear weapons would have to be used. Rachel Squire (Dunfermline, West): Does my right hon. Friend share my concern about today’s press reports, suggesting that weapons are being smuggled from eastern Europe, through Syria and into Iraq? If so, will he investigate the matter, and does he also agree that, if the reports are true, they are a further indication that Saddam Hussein has no intention of voluntarily complying with the UN resolutions and allowing an inspection team into Iraq? His sole interest appears to be his own power, rather than a peaceful future for the Iraqi people. Mr. Hoon: I am grateful to my hon. Friend. She is quite right: the matter must be investigated, and so far as we have been able to discern, the Iraqi regime have no obvious intention of complying with either international law or the UN Security Council resolutions. Ms Diane Abbott (Hackney, North and Stoke Newington): The Secretary of State referred to the possible use of nuclear weapons in circumstances of 29 Apr 2002 : Column 666 “extreme self-defence”. Can he help the House by explaining what that phrase means? People either defend themselves, or they do not. Mr. Hoon: I accept that there are those-some of whom may well be sitting on the Labour Benches-who do not believe in the use of nuclear weapons in any circumstances, but that is not the position of the Government or of the Labour party. It is therefore important to point out that the Government have nuclear weapons available to them, and that-in certain specified conditions to which I have referred – we would be prepared to use them.

Select Committee on Defence Minutes of Evidence



Examination of Witnesses (Questions 220-238)

RT HON GEOFFREY HOON MP AND MR BRIAN HAWTIN CB Jim Knight 234. Just a quick one in the last couple of minutes. Traditionally, we have had our nuclear deterrent and we have regarded that as an effective way of deterring others from sending ballistic weapons towards us. From a UK standpoint, to what extent does maintaining that nuclear deterrent mitigate the need for a missile defence system?

(Mr Hoon) In terms of deterrence, clearly, our nuclear capability deters those who might threaten the United Kingdom with a weapon of mass destruction. I think we would have to have a rather longer discussion about whether that, for example, might work in relation to a failed state or a country like Iraq that, for example, places the lives of its own citizens at little value and might be prepared to contemplate taking on a nuclear power like the United Kingdom and accept the consequences. I think in terms of deterrence there is clearly an effect that our nuclear weapons have, but the reason and justification for the argument about states of concern is that some of those states would not be deterred in the way in which conventional deterrence theory assumes.

235. Do you think that states such as, let us say, Iraq-which seems to be on our lips.

(Mr Hoon) On yours, anyway.

236. It seemed to stumble across yours. Do you think such a state would be deterred by our deterrent from using weapons of mass destruction against our forces in the field?

(Mr Hoon) I think, again, the same argument arises, that there are clearly some states who would be deterred by the fact that the United Kingdom possesses nuclear weapons and has the willingness and ability to use them in appropriate circumstances. States of concern, I would be much less confident about, and Saddam Hussain has demonstrated in the past his willingness to use chemical weapons against his own people. In those kinds of states the wishes, needs and interests of citizens are clearly much less regarded and we cannot rule out the possibility that such states would be willing to sacrifice their own people in order to make that kind of gesture. 237. Is it a confidence about whether or not they believe you would use them or confidence about whether or not they would care about whether you use them?

(Mr Hoon) They can be absolutely confident that in the right conditions we would be willing to use our nuclear weapons. What I cannot be absolutely confident about is whether that would be sufficient to deter them from using a weapon of mass destruction in the first place.